‘Extraordinary Rendition’ as a Reflection of State Terrorism: The Case of PMB versus Nnamdi Kanu

Bola A. Akinterinwa 

The case of Mazi Nnamdi Kanu, leader of the Independent People of Biafra (IPOB), who was abducted in a manu militari fashion in Kenya, is a reflection of a kettle accusing the steam and a criminal terrorist also pointing accusing fingers to another person as a terrorist. This is the very case with President Muhammadu Buhari (PMB)’s security policy. And true, terrorism is a crime internationally prohibited. But when is a criminal act considered terroristic? Is criminal terrorism different from political terrorism? Put differently, when political objectives are pursued by prohibited methods or when illegal political objectives are pursued by acceptable means, what should be the correct attitudinal disposition towards the objectives pursued and methods adopted? Recall the African-US perspectives under President Ronald Reagan on the issue of African liberation movements fighting apartheid in Southern Africa.

During the anti-apartheid struggle, the United States saw the African liberation movements as terrorists and wanted the international community to adopt collective sanctions against them. African leaders argued that they were freedom fighters and liberators and not terrorists, and therefore encouraged the liberation movements to further strengthen their efforts to fight apartheid tooth and nail. Before then, Nigeria had a foreign policy of ‘No Compromise with Apartheid.’ Nigeria also made apartheid an exception to the UN’s rule of non-intervention in the domestic affairs of other sovereign States. In this regard, how do we explain the case of the IPOB considering the foregoing: terrorist or liberation movement? 

Internationally speaking, the word, ‘terrorism,’ originated from the time of French Revolution in 1789 and was mainly defined by the use of ‘cruelty.’ Terrorism did not attract much global focus until the September 11, 2001 al-Qaeda terrorist attacks on the US Twin Towers in New York. Before then, the 1994 UNGA Resolution no. A/RES/49/60 on Measures to Eliminate International Terrorism, adopted at the 84th Plenary Meeting on 9 December, 1994, defined terrorism as ‘criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes … in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.’

Similarly, UN Security Council Resolution Number 1566 of 8 October 2004, described terrorism as ‘criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group or persons or particular persons, intimidate a population or compel a government or an international organisation to do or to abstain from doing any act.’ Thus, how does this apply in the context of PMB and Nnamdi Kanu in Nigeria?

Terrorism: PMB versus Nnamdi Kanu

Terrorism is one main source of misunderstanding in the relationship between PMB and Nnamdi Kanu, who is believed to be using armed force to prosecute the agitation for an independent state of Biafra. In this regard, there are two crises of legitimacy at the domestic level which breed insecurity and two other crises of legitimacy at the external level, all of which must first be explicated and understood in discussing the arrest, trial, and discharge of Nnamdi Kanu. First, at the domestic level, the 1999 Constitution, even as continuously amended, divides more than uniting Nigerians for two reasons: the purport that it is a constitution of the people, whereas it was militarily imposed. 

Secondly, the constitution is believed to be an Islamic Constitution, which presents Nigeria as an Islamic State but which it is not. By reportedly mentioning Sharia 73 times; Islam, 28 times; Grand Khadi, 54 times; and Muslim, 10 times, but by error of omission or commission, not mentioning Christ, Church, Christian or Christianity in the same 1999 constitution which provides for secularity, many people rightly or wrongly believe that Nigeria is an Islamic country. The same concern was raised when the Ibrahim Babangida military administration registered Nigeria as a member of the Organisation of Islamic Cooperation (OIC) in 1986.

The OIC is comprised of 56 countries having ‘Islam as the state religion or where Muslims form the majority of the population, and occasionally where Muslims are only a minority but still play ‘a significant role in the country.’ Is Islam the state religion of Nigeria? Are the Muslims the most populous in Nigeria going by religious criterion? As at today, Nigeria’s ethnic population is, at best, very controversial, especially with the Islamic population put at 50%.

The critical point here is that Section 38(1) of the 1999 Constitution provides for the rights to freedom of thought, conscience and religion. Under the Sharia Law, the conversion by Muslims to other religions is proscribed even though it allows the conversion from other faiths to Islam. Leaving Islam to accept another faith is considered an apostasy which is treasonable and punishable by death in most interpretations of Sharia. This is one major source of agitations for self-determination and separate autonomy in Southern Nigeria.

At the external level, there is the conflict between the principles of self-determination, internally and externally defined, and sanctity of inherited colonial frontiers, generally referred to as uti possidetis juris, which was first conceived and applied in 1810 by Latin American countries and which the African leaders borrowed from and included in the 1963 OAU Charter. Uti possidetis juris simply means that newly independent countries shall continue to maintain their inherited colonial international boundaries in order to avoid unnecessary post-colonial territorial disputes. As regards external self-determination, it is about the right of people to accede to national sovereignty, and be decolonised. Internal self-determination is about the right to secession from an existing sovereign State.

Without any shadow of doubt, the United Nations does not encourage secession. It is, in fact, against it or against internal self-determination. Most successful secession efforts have been by use of force. Negotiated secessions have been rare. What is common is the taking up of arms to do battle in order to make political points. It is within this context that the agitation of the Nnamdi Kanu-led IPOB for a Biafran Republic should be seen and understood.  

In October 2015, Nnamdi Kanu was levied with an 11-count charge, ranging from allegations of operating an illegal society, illegal possession of fire arms, illegal importation of goods to publication of defamatory matter, terrorism and treasonable felony. He was arraigned on 23rd December, 2015. Reportedly, he was mistreated while in detention and fell sick and was granted bail on 25 April 2017 on medical grounds.

And perhaps more disturbingly, Nnamdi Kanu, though still under bail terms, had to flee the country in September 2017 for safety following an unwarranted military invasion of his home in Afara-Ukwu in Abia State by the Federal Government, which capitalised on his escaping into safety to argue that he jumped bail and therefore issued a warrant of arrest.  As explained by the Senior Advocate, Ozekhome, the Lead Counsel to Nnamdi Kalu, ‘he was enjoying his bail without breaching the terms. However, he was in his ancestral home when agents of the respondents (government) invaded his home in September 2017. He barely escaped alive by sheer providence and found himself first in Israel and later in London. When the appellant (Kanu) travelled from London to Kenya, the agents of the respondent, on June 27 2021, forcefully abducted the appellant,  tortured, and renditioned him back to the country (Nigeria) without following any extradition procedure.’ This is the origin of the so-called ‘extraordinary rendition,’ considered by the appeal court.

The issue here is that the Federal Government is holding on to his escape and alleged jumping of bail but without consideration of what compelled him to seek immediate refuge following military invasion of his home. Before his bail, he was detained for more than 14 months. Consequently, following his re-arrest in Kenya, Nnamdi Kanu was subjected to a fresh set of charges: he was initially given a 15-count charge but which the trial judge, Binta Nyako of the Federal High Court, Abuja, dismissed eight of them on 8 April 2022. Not satisfied with this, Kanu’s lawyers sought the intervention of the Appeal Court. In his plea number CA/ABJ/CR/625/2022, to the Appeal Court, Kanu’s lead counsel argued that the charges were defective and incompetent and therefore should be discharged and acquitted. And true enough, on April 8, 2022, the Court struck out eight out of the 15 amended charges, including terrorism, levied against Kanu. 

At the appellate level on Thursday, 13 October 2022, the appeal court, led by Justice Jummai Hanatu Sankey, said the lower court ‘lacks the jurisdiction to entertain the suit’ and did not bother about the fact that Kanu was illegally brought back to Nigeria. In other words,  David Kaswe, the government’s counsel, did not deny Mike Ozekhome’s submission that Kanu was ‘extraordinarily renditioned from Kenya.’ In deciding, the court considered this ‘manner in which the appellant was forcefully abducted and rendered into the country shows appalling disregard to international conventions and treaties on the part of the respondent, including its local laws – the Terrorism Prevention Act.’ Section 1 (a) (2) of the Act gives to the Attorney General of the Federation the responsibility for the ‘effective implementation of the Act to conform with international standard, treaties and convention.’

More important, the Appeal Court had it that ‘the respondent was mandated by law to establish that it abided by the law in the extradition of the appellant, yet, the respondent has no answer, rather it sought refuge to the provisions of the Administration of Criminal Justice Act, 2015. In law, that is a costly failure and such failure is an admittance by the respondent.’ The Court further noted that ‘where a party fails to controvert a deposition by an opponent, the issue not contested is deemed conceded.’

What the court therefore underscored that Nigeria, as a signatory to some international conventions, did not respect the modalities for extradition. The Government of Nigeria did not comply with the internationally-contracted obligations or has not complied with the spirit of the sanctity of agreements. This brings us to the issue of extraordinary rendition of Nnamdi Kaduna as an expression of state terrorism which has become a main characteristic of politico-security governance under PMB. 

Extraordinary Rendition as State Terrorism

Without doubt, the PMB administration always prefers to flagrantly carry battles to the door steps of perceived opponents, regardless of whether the opponents are armed or unarmed. It has always been more of vindication than a true quest for national security. What is particularly interesting in the judgment of the appeal court is the mania of forceful abduction of Nnamdi Kanu in June 2021. The judgment described the abduction as an ‘extraordinary rendition.’ As we noted above, ‘the manner in which the appellant was forcefully abducted and rendered into the country shows appalling disregard to international conventions and treaties on the part of the respondent, including its local laws – the Terrorism Prevention Act.’ Why is it that the PMB government a non-respecter of international agreements? Even at the municipal level, the protracted strike by the university lecturers was largely because of Federal Government’s attitude of never respecting agreements. Why should the international responsibility of Nigeria not be called into question when she consistently flouts the rule of pacta sunt servanda or sanctity of agreements?

Based on Government’s prosecutorial remissness, the three-man appeal court, voided and set aside the remaining seven terrorist charges by the Federal Government against Nnamdi Kanu, and by so doing, Mazi Kanu was discharged. But the discharge has raised some other questions: does Kanu’s discharge also mean acquittal? A school of thought has it that the notion of discharge also implies acquittal in the sense that if one is fully discharged of all allegations, there cannot be any offence again to be prosecuted. Another school says with discharge, the possibility of re-arrest and beginning a fresh case cannot be ruled out. The discharge-acquittal school, which says discharging also implies acquitting, argues that a discharge judgment must first be respected before anything else. In this regard, why will any government want to re-arrest Kanu in light of the fact that PMB already used terror to abduct Nnamdi Kanu in his home? Why should PMB be seeking a posteriori legality on an anteriority of illegality, especially in light of the fact that security agents also invaded his home, neutralising his fundamental human rights? 

More concernedly, why is PMB always engaging in forceful abduction and not always prepared to go through the normal procedure defined in extradition agreements? Why engage in transferring political fugitives militarily? Why are Boko Haramists given amnesty, retrained, reintegrated and related with softly and agitators for self-determination, an international legitimate principle, are treated obnoxiously?

It should be recalled here that, in 1986, PMB, then military Head of State, abducted the then former Minister of Transport, Alhaji Umaru Dikko, allegedly for corruption, in London. And true enough, in collaboration with some Israeli anaesthetists, Umaru Dikko was specially crated like a commodity and tagged ‘diplomatic baggage’ and taken to the Stanstead Airport, expectedly to be flown to Nigeria. 

By tagging anaesthetised Dikko as a diplomatic luggage, the notice to the UK government was to prevent the UK from violating the 1961 Vienna Convention on Diplomatic Relations which provides for absolute protection of diplomatic bags and inviolability of diplomatic agents. True, the crating was very successful but because of the big size of the Nigerian Airways aircraft, which was used and seen at the Stanstead Airport, a very small airport for the Nigerian Airways, suspicions quickly emerged and Nigeria’s belief in inviolability quickly became another story entirely. But Alhaji Umaru Dikko was rescued. The UK expressed anger and took exception to state terrorism on its territory. In fact, the incident eventually led to disruption of diplomatic ties between Nigeria and the United Kingdom for about two years.

Again, but more disturbingly, under the same PMB as elected president of Nigeria, many opposition elements in Nigeria have had their homes violently invaded under the guise of seeking to maintain national security and unity. And true again, Nigeria has been playing host to national insecurity even before PMB came to power through election in 2015. The public support for election of PMB was largely explained by the wrong consideration that PMB would be able to contain terrorism by the Boko Haram as a former Army General and former military Head of State. But, most unfortunately, insecurity has continued to deepen under him. The economy has not been in good shape. The environmental conditionings of political governance have become more inclement more than ever before. They are now serving as catalytic dynamics of increasing agitations for secession based on the belief in the right of self-determination.

Indeed, rather for PMB to seek reason, think beyond the box and dialogue with agitators, he wrongly and myopically believe that he can suppress any political agitation not consistent with the spirit of national unity. He even told Nigerians that the 18-volume report of the 2014 National Conference was gathering dust in his drawers in his office, trying to suggest that the report is of no value to him. The report has suggested restructuring in the governance of Nigeria. But can the Nigeria of today survive without restructuring? Very doubtful! 

But, more significantly, why will an elected president not seek to understand what had been identified as national problems and then assess the suggestions on the leeway? Left to PMB, Nigeria’s national unity is not negotiable. It is a desideratum. He also wrongly believes in the indissolubility of Nigeria, especially in the wrong belief that he has a constitutional backing. 

Most unfortunately for him, however, many countries have disintegrated in spite of their non-controversial constitutions and Nigeria cannot be an exception. In Africa, South Sudan was carved out from Sudan after decades of war. Eritrea was also carved out of Ethiopia. Many cases of separation, in spite of protestations, abound in international relations. Nigeria’s constitution, as we noted earlier, is very controversial. It is a military constitution and there have been calls for a complete re-writing and not simply making cosmetic amendments and partial reviews.

What should be noted and that is completely missing in the thinking of PMB is his non-recognition of the fact that membership of any given stratum of society, organisation or a country is always a priori a resultant of the consent of people constituting the entity. Even when international agreements are done, they cannot be enforced without going through the ratification and even domestication processes in the context of Nigeria. In other words, the consent of the National Assembly or the people must be given before such international agreements can become part of enforceable municipal law. Consequently, PMB will need to re-polish his perception of Nigeria as indissoluble and indivisible and then revisit the idea  of imposing an Islamic Nigeria, a Fulanised Nigeria and stop using terror to suppress agitations for autonomous existence by some ethnic groups. PMB must begin to dream new dreams of true federalism and accept that there can never be ethnic superiority in Nigeria. In sum, in maintaining national unity, Government must stop engaging in terrorist methods. Terrorist methods against peaceful agitators for self-determination, as it is the case with Sunday Igboho, can only precipitate sustainable guerrilla warfare. Self-determination is political and cannot be suppressed by military intimidations. The more than three hundred years of struggle for independence by the Catalans in Italy is a case in point. PMB should therefore stop killing Nigeria through extraordinary rendition of agitators.